In California, serving a defendant in a civil lawsuit is a critical part of the legal process, as it ensures that the defendant is formally notified of the lawsuit and has the opportunity to respond. Here are the steps and rules for serving a defendant in civil litigation in California:
1. Who Can Serve the Defendant?
- Personal Service: The defendant must be personally served with the court papers. This means the person who is serving the papers must physically hand them to the defendant. This is the most common and preferred method.
- Substitute Service: If the defendant is not available for personal service, substitute service can be used. The papers can be left with a person of suitable age and discretion at the defendant’s home or business, and a copy must also be mailed to the defendant.
- Service by Mail (with acknowledgment): If the defendant agrees to accept service by mail, this method can be used. The defendant must sign an acknowledgment of receipt (Form POS-015) and return it to the plaintiff. If the defendant doesn’t sign and return the acknowledgment, other methods of service must be used.
- Service by Publication: In rare cases, when the defendant’s whereabouts are unknown and other methods of service have been unsuccessful, service by publication may be allowed. This involves publishing the summons in a local newspaper, as authorized by the court.
2. Types of Documents to Serve
- Summons and Complaint: The most common documents served to start a lawsuit. The Summons informs the defendant that a lawsuit has been filed, and the Complaint details the plaintiff’s claims.
- Other Documents: Additional documents related to the case, such as motions or notices, may also be served as part of the litigation process.
3. Timeframe for Serving a Defendant
- Time Limits: In California, the defendant must be served within 60 days from the date the complaint is filed. If the defendant is not served within this time, the court may dismiss the case unless the plaintiff shows good cause for the delay.
- Extension of Time: The court can grant an extension of time to serve the defendant in certain circumstances, but the plaintiff must request an extension before the 60-day period expires.
4. Proof of Service
After serving the defendant, you must file a Proof of Service with the court. This form confirms that the defendant was properly served with the necessary documents. The person who served the defendant completes the Proof of Service form, which is then filed with the court to show that the service was done correctly.
The Proof of Service form includes details like:
- Who was served.
- When and where the service occurred.
- How the service was made (personal, substitute, mail, etc.).
Some common Proof of Service forms in California include:
- Proof of Service of Summons (Form POS-010)
- Proof of Service by Mail (Form POS-030)
5. Special Considerations for Serving Different Types of Defendants
- Corporations, Partnerships, or LLCs: If you’re suing a business entity, service must be made to an officer, director, or other authorized representative of the entity. Service on a business must follow specific rules depending on the type of entity.
- Minors or Incompetents: Special rules apply when serving minors or individuals who are declared legally incompetent. Generally, a guardian ad litem or a legal representative must be served.
- Government Entities: Serving a government entity or official (such as a city, county, or state) requires following specific service rules, including notifying the appropriate government agency.
6. Failure to Serve the Defendant
- If you fail to serve the defendant properly, your case may be delayed or dismissed. If service is not completed within the specified time (usually 60 days), you may need to request a court order to extend the time for service or take alternative action.
7. How to Serve the Defendant (Step-by-Step)
- Prepare the Documents: Complete the Summons and Complaint (and any additional forms or documents) and have them ready for service.
- Choose a Server: Hire a process server, ask a friend or family member (who is over 18 and not involved in the case), or use the sheriff’s office to serve the defendant.
- Serve the Defendant: Arrange for personal service or another valid form of service.
- File Proof of Service: After the defendant is served, ensure that the Proof of Service form is completed and filed with the court.
Conclusion
Serving a defendant in civil litigation in California requires following strict procedural rules to ensure that the defendant is properly notified of the lawsuit. Failing to serve the defendant correctly can lead to delays or even dismissal of the case, so it’s crucial to follow the correct service methods and file the proper proof of service with the court. If you’re uncertain about the rules or need assistance, consulting with an attorney or professional process server can help ensure that the defendant is served appropriately.
